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Arbitrator admits surreptitious audio recording

22 Dec

On October 27th, Arbitrator Dorsey held that a surreptitious audio recording should be entered into evidence because its probative value outweighed the potential prejudice to harmonious workplace relations. He was impressed that the recording was made spontaneously at a work team dinner (rather than during work proper) and that “tone” of the communications recorded would be relevant.

Arbitrator Dorsey commented:

I find the balance between real or potential prejudicial effect of an unplanned recording in the not staged, relaxed situation away from the stress of being on the fire line is outweighed by the probative value of having an accurate record of apparently unprovoked words and tone that became the subject of a complaint and the employer’s disciplinary decision.

The effect the recording might have on either the presentation of the union or employer’s case is secondary to the prejudicial effect exclusion of the recording will have on the credibility and acceptability of the outcome of this arbitration process.

It will be inexplicable to the employee witnesses at the dinner table why their recollection of the words and tone over 15 months ago, which will be subject to time consuming dissection to expose differences in recollection, is the approach preferred to determining what was said in what tone over listening to a recording of what was said with whatever limitations and frailties it might have. They would be justified in regarding such a fact-finding process as an anachronism lacking common sense; operating in a world in which they do not live; and should be treated with a corresponding lack of respect.

BCGEU and BC Public Service Agency (27 October 2016, Dorsey).

Privacy and accommodation of disability in Ontario

21 Jun

Last week I sat on a panel about privacy and the accommodation of disability. I sat opposite union counsel Andrew Astritis from Raven Cameron, and Emma Phillips of Goldblatt Partners moderated. Andrew and Emma both know privacy law well, and we had a fun, engaging and even balanced discussion! I’ve put my “paper” and speaking notes below.

Arbitrator orders $25,000 in damages for privacy breach

19 Jun

Arbitrator Stout’s April 28th decision has received ample coverage, but I’d like this site to be a relatively complete repository of privacy damages awards. Mr. Stout ordered an employer to pay $25,000 in general damages after a supervisor disclosed an employee’s visual disability to three other employees after learning of the disability in a prior arbitration proceeding. The supervisor apologized orally and in writing, which presumably mitigated the breach. He did not testify, however, and Mr. Stout inferred that the disclosure was undertaken as retaliation for the outcome of the prior arbitration, a significant aggravating factor. The grievor also suffered distress that required him to undergo medical treatment and the employer “did very little” to remedy the breach in its response (e.g., discipline on the supervisor).

Canadian Pacific Railway Company v Teamsters Canada Rail Conference, 2016 CanLII 25247 (ON LA).

USB key treated as a private receptacle by labour tribunal – but why?

17 Apr

On March 29th the Grievance Settlement Board (Ontario) held that a government employer did not breach its collective agreement or the Charter by examining a USB key that it found in the workplace.

They key belonged to an employee who used it to store over 1000 files, some of which were work-related and allegedly confidential and sensitive. Remarkably, the employee also stored sensitive personal information on the key, including passport applications for his two children and a list of his login credentials and passwords. The key was not password protected and not marked in any way that would identify it as belonging to the employee.

The employee lost the key in the workplace. The employer found it. An HR employee inserted they key in her computer to read its contents. She identified the key as possibly belonging to the employee. She gave the key to the employee’s manager, who inserted it in his computer on several occasions. The manager identified that the key contained confidential and sensitive information belonging to the employer. The manager then ordered a forensic investigation. The investigation led to the discovery of a draft of an e-mail that disparaged the manager and had earlier been distributed from an anonymous e-mail account.

The GSB held that the employee had a reasonable expectation of privacy – one so limited as not to be as “pronounced” as the expectation recognized in R v Cole. The GSB also held, however, that the employer acted with lawful authority and reasonably. The reasonableness analysis contains some helpful statements for employers, most notably the following statement on the examination of “mixed-use receptacles” (my words):

The Association argues that the search conducted by Mr. Tee was “speculative” and constituted “rummaging around” on the USB key. It asserts that if Mr. Tee had been interested in finding files which might contain government data, he would have or should have searched directories which appeared to be work related, such as EPS, TPAS or CR. I do not find this a persuasive argument. As noted in R. v. Vu, in discussing whether search warrants issued in relation to computers should set out detailed conditions under which the search might be carried out, such an approach does not reflect the reality of computers: see paras. 57 and 58. Given the ease with which files can be misfiled or hidden on a computer, it is difficult to predict where a file relevant to an inquiry will be found. It may be filed within a directory bearing a related name, but if the intention is in fact to hide the file it is unlikely that it will be. Further, the type of file, as identified by the filename extension, is not a guarantee of contents. A photograph, for example can be embedded in a Word document. Provided that the Employer had reasonable cause to view the contents of the USB key in the first place (as I have found there was in this case), an employee who uses the same key for both personal and work related purposes creates and thereby assumes the risk that some of their personal documents may be viewed in the course of an otherwise legitimate search by the employer for work related files or documents.

I learned about this case shortly before it was decided and remarked that it was quite bizarre. I couldn’t fathom why anyone would be so utterly irresponsible to store such sensitive information on a USB key. This is one reason why I’m critical of this decision, which treats this employee’s careless information handling practice as something worthy of protection. The other reason I’m critical of  this decision is that it suggests the expectation of privacy recognized in Cole is higher than contemplated by the Supreme Court of Canada – which remarked that Richard Cole’s expectation of privacy was not “entirely eliminated” by the operational realities of the workplace. Not all of our dealings with information demand privacy protection, and in my view we need to make the reasonable expectation of privacy threshold a real, meaningful threshold so management can exercise its rights without unwarranted scrutiny and litigation.

I also should say that it’s very bad to stick USB keys found lying around (even in the workplace) into work computers (or home computers), at least without being very careful about the malware risk. That’s another reason why USB keys are evil.

Association of Management, Administrative and Professional Crown Employees of Ontario (Bhattacharya) v Ontario (Government and Consumer Services), 2016 CanLII 17002 (ON GSB).

Late apology and lack of correction results in increased privacy damages award

14 Mar

There has been some public discussion of the recent arbitration award by Arbitrator Knopf in which she awarded an employee $1,000 in damages for breach of privacy. The following is my view about what organizations should take from Ms. Knopf’s award.

The case is about one employer who shared a medical note with another employer. The other employer also employed the employee and wanted to confirm its understanding of her fitness for work and need for accommodation.

The note the employer disclosed stated, “pt is able to perform the duties of Dietary Aide at St. Pat’s home.” The disclosure was made by a contractor who managed the employee. He also told the other employer that the employee (a) was not currently being accommodated, (b) had no work-related restrictions and (c) was working her regularly scheduled shifts.

The employer admitted liability, and it appears that damages were awarded based only on the disclosure of the medical note. This is notable because it is debatable whether it was wrong for the employer disclose “a” and “c” as noted above. The information I’ve noted as “a” is not received from a health information custodian and therefore is not regulated by statute. The information I’ve noted as “c” is also note received from a health information custodian and is also arguably not personal information. I’m not suggesting the employer was clearly right in disclosing “a” and “c,” but it was also not clearly wrong.

The most important part of the award is the damages analysis, most notably Ms. Knopf’s comments the employer’s delayed apology and lack of corrective action. She said:

This Employer has apologized to the Grievor in the course of these proceedings and affirmed its desire to maintain and to continue a positive relationship with the Grievor. However, this apology was only offered once the Union refined and narrowed the claim for relief in the course of preparation for this hearing, even though the breach of the Confidentiality Policy was apparent from the outset. Therefore almost three (3) years had gone by. The evidence also disclosed that the Employer had not required its contractors to abide by this Policy and there is no evidence to suggest that it has done so to date. Employers often criticize grievors who do not offer timely apologies in situations of wrongdoing. Employers should be held to the same standard. The apology from the Employer is clearly meaningful and significant, but it did come very late and it lacks completion, given the apparently continuing failure to insist on compliance with its Confidentiality Policy by the contractors who serve the residents and interact with the members of this bargaining unit.

The most common and preferred strategy for responding to a loss of data is to conduct a good early assessment and “take lumps” – including by issuing an appropriate apology and committing to corrective action. This case supports the use of that strategy.

St. Patrick’s Home of Ottawa Inc. v Canadian Union of Public Employees, Local 2437, 2016 CanLII 10432 (ON LA).

Big data and the workplace – a briefing note

13 Mar

I was recently asked to create a minimalistic briefing note on “big data and the workplace” for a group of experienced employment lawyers. Here is what I wrote.

Employers are using data analytics to derive insights about their employees. They are then using the insights to make decisions about individual employees and potential employees. The objective is to make better human resources decisions.

The first and major big data application for employers was hiring. Hiring analytics involves merging historical data about candidates and employees into a database and using software to analyze the data to identify measurable candidate attributes that correlate with successful employment.

Today, employers use data analytics for a range of other applications – those supporting performance management, health and safety and security, for example. All these applications involve a similar process, similar technology and similar techniques to those involved with hiring analytics.

The use of workplace data analytics is popular and legitimate. It is naïve to suggest that the use of data analytics is wrong-headed, though there are legal risks.

The greatest risk is the risk of liability under anti-discrimination statutes. One can hardly blame employers for attempting to determine which candidates are most likely to be successful. Some argue that the use a good predictive model can actually reduce discriminatory bias!

This optimistic view of workplace data analytics is theoretically sound, but problematic in practice. The discrimination risk exists, in part, because the predictive models are typically developed by third-parties can be poorly understood by the employer-enduser – i.e., predictive models exist in a “black box.” This may make defending the use of even the most sound model very costly and risky. And when a model produces a result that disadvantages those with certain protected personal characteristics, a human rights tribunal will certainly question “Why?” “Is there a systemic discrimination problem that underscores the result?” When diversity is now valued by business, workplace data analytics, if used mechanically, can lead organizations to swim against the flow.

Privacy is also an issue, though there is a disconnect between potential employee perceptions and actual privacy impact. Strictly speaking, analyzing data to derive insights about a population is not a use of personal information at all. Service providers and employers are wary of privacy concerns, and  usually do not publish insights about small populations (where the risk of identification is high). Employers should also communicate with employees about the nature of their analysis with a view to putting employees at ease and reducing the risk of complaints that arise out of a misunderstanding.

Ensuring the analysis is “true statistical analysis” will address part of the privacy concern associated with the the use of workplace data analytics, though there is still a significant data handling issue that will remain. Workplace data analytics involves compiling existing data (and sometimes augmenting it) to create a large data source. Even if the data source may only be used to understand a populations or groups within a population, to support sound statistical analysis it must include data that is linked to individuals. The data source could therefore be compromised and cause harm to individual privacy. Data security – particularly given the data source will almost always be handed by a third party) – is of paramount importance.

Criminal reference checks for current hospital employees ruled improper

14 Feb

In a decision from last May that just came to my attention, Arbitrator Stout ruled that a hospital’s policy that required all current employees to undertake vulnerable sector criminal record checks violated its nurses collective agreement. 

Although British Columbia legislation supports periodic checks on vulnerable sector employees, the hospital’s policy was first of its kind in the Ontario hospital sector. Ontario employer’s have had difficulty justifying such checks. Arbitrator Picher’s comment about the distinction between pre-employment and in-employment checks in City of Ottawa is both authoritative and restrictive. 

The person who presents himself or herself at the door of a business or other institution to be hired does so as a stranger. At that point the employer knows little or nothing about the person who is no more than a job applicant. In my view, the same cannot be said of an individual who has, for a significant period of time, been an employee under the supervision of management. The employment relationship presupposes a degree of ongoing, and arguably increasing, familiarity with the qualities and personality of the individual employee. The employer, through its managers and supervisors, is not without reasonable means to make an ongoing assessment of the fitness of the individual for continued employment, including such factors as his or her moral rectitude, to the extent that it can be determined from job performance, relationships with supervisors and other employees, and such other information as may incidentally come to the attention of the employer through the normal social exchanges that are common to most workplaces. On the whole, therefore, the extraordinary waiver of privacy which may be justified when a stranger is hired is substantially less compelling as applied to an employee with many months, or indeed many years, of service.

Mr. Picher did state that in-employment checks can be used for employees exercising “particularly sensitive functions.” 

In this case, Arbitrator Stout held that the employer had not proven a “current problem” or “real risk.” Arbitrator Stout was also significantly influenced by the structural problem with vulnerable sector checks – i.e. they return sensitive “non-conviction information” for which employers generally have no need.

Rouge Valley Health System v Ontario Nurses’ Association, 2015 CanLII 24422 (ON LA).